In court filings, the Department of Homeland Security (“DHS”) seems to be conceding the point that, under certain situations, a person who is a victim of domestic abuse may qualify for asylum in the U.S.   The identity of the woman in the case was not revealed in the court filings to protect her privacy and against possible retaliation by her husband.  The case involved a Mexican citizen and her two children who endured years of domestic abuse by her common law husband.  The woman’s husband beat her regularly.  He beat her whenever she defied him, or for no reason at all.  He also beat the couple’s children when they tried to stand up for their mother in defiance of him.  The woman attempted to escape from the abusive relationship many times, but he always managed to find her and force her back to their home.  She also sought help from the local Mexican police, but the police were not interested in getting involved with what they considered to be a private family matter.  Her appeal for police protection was usually in vain.  There was evidence presented at the asylum hearing that the social norms of Mexico tolerated abusive behavior of husbands against their spouses because a woman is considered to be property of her husband.  For this reason, the police and other authority figures did not take the woman’s complaints seriously.  Also, her husband appeared to be an influential and affluent person in the community, and was able to bribe the police or otherwise convince them to not get involved.  He even bragged to her that he owned the police.

The woman applied for asylum based upon persecution on account of her membership in a social group.  That is, “Mexican women in an abusive domestic relationship who are unable to leave.”  In applying for asylum, it is not enough to establish that the applicant suffered abuse.  Rather, the applicant must show that she suffered persecution on account of a protected characteristic.  Here, the woman claims that the protected characteristic is her membership in a social group as consisting of Mexican women in abusive domestic relationships who are unable to leave.

In the asylum arena, the definition of a social group is difficult to pull off because it requires a fine balance.  Taken to its logical conclusion, a social group could be comprised of any group of more than two persons.  The concept of a particular social group can be so amorphous as to make the restrictions imposed by asylum laws meaningless.  Asylum, after all, is meant to be a form of relief for certain individuals, not everyone.   There must be meaningful limitations; otherwise, the floodgates would be thrown completely open.  The U.S. Supreme Court, the Board of Immigration Appeals, and various other courts in the U.S. have grappled with the meaning of “particular social group” in cases which have spanned two decades.  The definition has been refined in a series of cases.  A person may be considered a member of a particular social group if she shared “immutable or fundamental characteristics” with other members of the group which she could not change or be forced to change.   “Social visibility” may also help determine whether a person belongs to a particular social group.  That is, do others within the same society see and discern the person in question as belonging a particular social group?  A social group must also have “particularity” in that the group would be recognized, in the society in question, as a discrete class of persons.

In its court filings, DHS criticized the woman’s conceptualization of her particular social group, arguing that it is too broad, and therefore, deficient for purposes of asylum.  However, DHS also took the extraordinary step of outlining the parameters of a reasonable application of the law based upon the facts of the woman’s case.  DHS discussed at length how a particular social group may be defined.  It offered alternative formulations of a particular social group which may qualify the woman for asylum, formulations which DHS acknowledged the woman did not articulate on her own.  DHS’s extensive line of reasoning is too lengthy to be discussed in detail here, but suffice to say it is a 180 degree turnaround from the position that it held in the past.  DHS’s court briefs also made it clear that the newly articulated position as set forth in the briefs  is the now the official government position on asylum cases involving victims of domestic abuse.   DHS’s newly developed position is a reversal of the position taken by the prior administration, who fought zealously in court proceedings that victims of sexual abuse do not qualify for asylum, and never came close to giving up this fight.

DHS also strongly suggested that the woman’s case be reconsidered by the immigration judge in order to give the woman the opportunity to develop facts which would allow her to establish that she qualifies for asylum based upon the guidance as set forth by DHS’s court filings.  Without sounding overly optimistic, this case is indeed a ray of hope to women who have been abused by their partners and who have been unable to receive assistance from the police in their countries.